TMI Blog2022 (12) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... in addition to the sale price, in view of their claim of Area based exemption. Thus, the appellant shall be entitled to benefit of calculation of duty on cum-duty-price. The appellant shall be entitled to the benefit of Cenvat credit on inputs and input services and the demand payable shall be re-calculated accordingly, in view of the clear mandate of the Central Excise Act r/w Cenvat Credit Rules - the appellant shall be entitled to SSI benefit for the period April, 2015 to December 2015, subject to compliance of other conditions under the said notification, if any. Penalty under Section 11AC - HELD THAT:- There is no case of mis-representation, misstatement, suppression or fraud on the part of the appellant. The appellant were und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/2003-CE dated 10.06.2003 r/w subsequent Notification No. 50/2003-CE (as amended). In the miscellaneous order dated 19/05/2022, this Tribunal recorded the submission of the appellant, that the main issue of exemption has been decided against the appellant by Hon ble Supreme Court in similar matter for the other period. Learned Counsel for the appellant urges the other connected issues as follows: 3. It is urged that the appellant was under bona fide belief that they will be entitled to the Area based exemption, as other units and /or similar units in the same locality were enjoying the Area based exemption. Accordingly, this appellant had also claimed the exemption and did not charge excise duty from their customers at the time of clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. Delhi 2017-5-GSTL-423 reliance is particularly placed on para 8 of the judgment which reads as follows: 8. Revenue has contended that the element of excise duty is not a permissible deduction since in cases where the exemption from duty is claimed, no duty becomes payable. Such a stand by the Revenue does not appear to be in line of the concept of transaction value enshrined in Section 4 with effect from 1-7-2000 as amplified by the explanation inserted with effect from 14-5-2003. As can be seen from the definition of transaction value as well as explanation reproduced earlier, while the transaction value exclude of taxes, if any actually paid or payable, the explanation inserted has created the concept of price-cud-duty. This is a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and/or adjusting the Cenvat credit of inputs. Under the scheme of the Central Excise Act, r/w the Cenvat Credit Rules, a manufacturer is entitled to Cenvat credit on the inputs and capital goods as well as input service under Rule 3 of CCR r/w Rule 2(a),(k) (l). Learned Counsel relies on the ruling of the Hon ble Supreme Court in the case of: (a) CCE Jaipur Vs Mahavir Aluminium Ltd 2007 (212) E.L.T. 3 (S.C.) (b) Siddhartha Tubes Ltd. Vs CCE Indore (M.P.) 2006 (193) E.L.T. 3 (S.C.) 7. Learned Counsel further urges that during the financial year 2014-15, the total clearance value of the goods was below Rs. 4 crores. Accordingly, the appellant-assessee claimed SSI benefit under Notification No. 8/2003-CE for the period April 2015 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AR further urges that the appellant has mentioned in their invoice- Excise duty charged nil , thus the sale price realized does not include the element of duty of excise and as such sale price cannot be considered as cum-duty price. As regards penalty, the learned AR relies on the findings of the court below in the impugned order. 11. Having considered the rival contentions, we hold that the appellant is entitled to the benefit of recalculation of demand on cum-duty basis in accordance with explanation to Section 4(1)(b) of the Central Excise Act. We find that admittedly appellant have not collected Central Excise duty in addition to the sale price, in view of their claim of Area based exemption. Thus, the appellant shall be entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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